Criminal Defense Topics: Arrested for Disturbing the Peace for Using Profane Words in Violation of Louisiana Revised Statutes 14:103A(2)? You May Have Been Arrested under a Law that is Unconstitutional.
Author: Attorney Philip B. Adams
The constitutionality of La. R.S 14:103A(2) is a nuanced issue that calls for considerable analysis. On its face, Louisiana Revised Statutes 14:103A(2) Disturbing the Peace (through use of profane words), as of 2022, reads as follows:
“A. Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public:
(2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty; or
Amended by Acts 1960, No. 70, §1; Acts 1963, No. 93, §1; Acts 1968, No. 647, §1; Acts 1979, No. 222, §1; Acts 2006, No. 805, §1; Acts 2013, No. 30, §1, eff. May 29, 2013.”
A statute (i.e., “law”) can be unconstitutional on its face (i.e., in its entirety) and/or unconstitutional as applied to the context of a particular person’s case. Louisiana Revised Statutes 14:103A(2) is arguably unconstitutional on its face and as applied. For the purpose of an “as applied” illustration, consider the following hypothetical fact pattern. Suppose a law enforcement officer is told by a person “You’re an asshole.” because that person is upset by something the officer did. That person doesn’t scream and yell these words in public. He simply mutters these words in a normal tone of voice in the presence of the officer. Enraged by what he perceives as an affront to his authority, the officer handcuffs the person for having violated Louisiana Revised Statutes 14:103A(2)(Disturbing the Peace Through Profane Words), thereby arresting him. That person is then transported to jail. Can that person be validly prosecuted under La. R.S. 14:103A(2)? In other words, is it constitutional to arrest an individual under such a fact pattern? Although each case is fact-specific, I do not believe it is constitutional to arrest someone under this fact pattern under this “as applied” analysis.
A legal analysis as to why Louisiana Revised Statutes 14:103A(2) may be unconstitutional is detailed and considerable and beyond the scope of this blog article. The constitutional guarantee of freedom of speech forbids the States from punishing the use of words or language not within “narrowly limited classes of speech.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). Even as to such a class, however, because “the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn,” Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958), “(i)n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom,” Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. “Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” NAACP ‘ Button, supra, 371 U.S., at 433, 83 S.Ct., at 338.
Great care must be taken in the regulation of spoken words to punish only classes of speech not protected by the First and Fourteenth Amendments to the United States Constitution, viz., “the lewd and obscene, the profane, the libelous and the insulting or ‘fighting’ words—those which by their very utterance inflict injury and tend to incite an immediate breach of the peace.” Chaplinski v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Only “fighting words-those which by their very utterance inflict injury and tend to incite an immediate breach of the peace,” are punishable. White v. Morris, 345 So.2d 461 (La.1977), citing Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Words not considered “fighting words” are constitutionally protected expressions. In addition, when such words are addressed to a police officer, the State must produce a stronger showing that the words are such as to incite the addressee to an immediate breach of the peace. City of New Orleans v. Lyons, 342 So.2d 196 (La.1977); Norrell v. City of Monroe, 375 So.2d 159 (La.App. 2d Cir.1979); White v. Morris, supra; State in Interest of W.B., 461 So.2d 366 (La.App. 2d Cir.1984). As found by the court in Lyons, supra, police officers are expected to exercise more restraint than others and insulting language is less likely to cause a breach of the peace and fall within the “fighting words” exception to protected speech. See also Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 972, 39 L.Ed.2d 214 (1974). The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. “Speech is often provocative and challenging.... [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949).
As you can see from the above brief analysis, determining whether a law is unconstitutional in a criminal context is complex. This blog article would be significantly longer if a full analysis of Louisiana Revised Statutes 14:103A(2) were provided. Each case is fact-specific. If you or someone you know has been arrested for having violated Louisiana Revised Statutes 14:103A(2), that person needs to immediately hire a competent attorney to protect his or her First Amendment freedoms. You can visit our “Contact Us” link and contact attorney Philip B. Adams with the Law Offices of Philip B. Adams, LLC to schedule an initial consultation.